Marks & Spencer unfairly dismissed a bakery worker because of her pregnancy, an employment tribunal has ruled.
Mrs Kayahan Kolan won her claims of automatic unfair dismissal and pregnancy and maternity discrimination from an M&S store in Watford.
She began her brief employment with the retailer on 15 October 2023, having agreed at interview that she would not have to lift anything heavier than 5kg because of a problem she had with her back.
After a week’s training at Brent Cross and Uxbridge, M&S transferred her to the Watford branch. She worked there on 26 and 27 October but encountered problems lifting heavy boxes.
The Watford employment tribunal heard that on 28 October, Kayahan Kolan told her branch manager, Ms Bowie, that carrying large boxes had given her back and groin pain. She said her training in Uxbridge had gone well as she had not been required to lift heavy packages.
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“I began explaining my situation,” said Kayahan Kolan, in her witness statement. “I needed clarity on what I was supposed to do because I could no longer endure the physical strain and lack of support.
“I then said, ‘I can’t carry more than 5kg, which is very important for me because I am pregnant’. After struggling that week, I finally disclosed my pregnancy, expecting that [Bowie] would acknowledge my concerns and discuss possible adjustments.”
“The moment I mentioned my pregnancy, [Bowie’s] expression shifted. Her face dropped, and she immediately dismissed me, stating, ‘I’m sorry, we don’t have any suitable jobs for you’. She then added ‘I can’t move you anywhere else because your English isn’t enough.’
“I broke down and [Bowie] patted my shoulder twice before it became apparent that she wanted me to leave. She did not ask a single question about my pregnancy, my health, or whether I needed support.
“She made no effort to discuss alternative roles, reasonable adjustments. The fact that I was dismissed immediately following the disclosure of my pregnancy and the fact that [Bowie] said that because of my pregnancy, she didn’t have any roles for me spoke to my worst fears that disclosing my pregnancy would lead to my dismissal.”
‘You can leave your card and go’
After the meeting, Kayahan Kolan waited for half an hour, thinking that someone would come to speak to her about her dismissal from M&S, before knocking on Bowie’s office door to seek clarity.
She wrote in her statement: “Instead of engaging with me, she coldly instructed me … ‘you can leave your card and go’, and did not speak further.
“I did as she said, but I did not hand in my swipe card willingly as an act of resignation – I did not want to resign – I handed it over because I was told to. At that moment, it became clear to me that I had been dismissed.”
The tribunal heard that Kayahan Kolan was not given a formal termination letter, notice period or any right to appeal and that she had been “sent away without a single piece of paperwork of proper explanation.”
Bowie told the tribunal she had congratulated Mrs Kayahan Kolan on her pregnancy and the pair had discussed alternative roles. She confirmed that she did not think the claimant’s level of English was suitable for working on the tills. She said the only other role that had a similar shift pattern involved moving heavy objects from cages onto shelves.
She described the conversation as amicable and said she encouraged Kayahan Kolan to take some time to consider other roles she was interested in.
“As far as I was concerned, [Kayahan Kolan] could have continued her role in the bakery throughout her pregnancy,” Bowie said in her witness statement.
‘Unambiguous’
However, the tribunal unanimously agreed that Kayahan Kolan did not resign voluntarily. In its judgment the panel said: “While the words ‘I dismissed you’ or any similar words were not used, it is plain (on our factual findings) that the respondent (through Ms Bowie) unambiguously communicated to the claimant that her services were no longer required.”
It concluded that the dismissal was caused by the disclosure of pregnancy. The judge said: “The tribunal was particularly taken by the fact that until the discussion on 30 October, the efforts of both the claimant and Ms Bowie were towards improving the situation for the claimant within the bakery.
“There was no other reason proffered by the respondent (that anything else happened in the meeting/s or otherwise) to explain the radical change of position to one of an immediate parting of the ways – other than the mention of pregnancy.
“In this regard, the tribunal accepted the graphic evidence given by the claimant as to the reaction of Ms Bowie when she heard this news.”
The tribunal accordingly upheld Kayahan Kolan’s complaints of automatic unfair dismissal and pregnancy discrimination. Compensation will be decided in due course.
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